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PETITIONER: BAIJ NATH PRASAD TRIPATHI

       Vs.

RESPONDENT: THE STATE OF BHOPAL(and connected petition)

DATE OF JUDGMENT: 13/02/1957

BENCH:

ACT: Criminal trial-Prosecution for offences under s. 161 of the Indian  PenalCode and s. 5 of the Prevention  of  Corruption Act-Proceedings  quashed for want of  Proper  sanction-Fresh sanction-Second  trial  for same  offences--Whether  betred- Constitution   of  India,  Art.  20  (2)-Code  of   Criminal Procedure, S. 403.

HEADNOTE: The  accused was tried and convicted by a Special judge  for offences  under s. 161 of the Indian Penal Code and s. 5  of the  Prevention  of  Corruption Act.  On  appeal  the  whole proceedings were quashed as being ab initio invalid for want of proper sanction.  The authorities accorded fresh sanction and directed the accused to be tried by a Special judge  for the same offences.  It was contended by the accused that the second  trial was barred by Art. 20 (2) of the  Constitution of India and by s. 403 -Of the Code of Criminal Procedure. Held,  that  the trial was not barred.  Art. 20 (2)  had  no application  in  the  case.   The  accused  was  not   being prosecuted and punished for the same offence more than once, the  earlier  proceedings having been held to  be  null  and void.  The accused was not tried in the earlier  proceedings by  a  Court of competent jurisdiction, nor  was  there  any conviction  or acquittal in force within the meaning  of  S. 403(1)  of the Code to stand as a bar against the trial  for the same offence. Yusofalli’Mulla v. The King, A.I.R. (1949) P. C. 264, Basdeo Agarwalla v. King-Emperor, (1945) F.C.R. 93 and Budha Mal v. of Delhi, Criminal Appeal No. 17 Of 1952, decided on October 1952, followed.

JUDGMENT: ORIGINAL  JURISDICTION:  Petition  No.  115  of  1956,   and Petition No. 132 of 1956. Petitions under Article 32 of the Constitution of India  for the enforcement of fundamental rights. B.   D. Sharma, for the petitioners. C.   K. Daphtary, Solicitor-General of India, Porus A. Mehta and R. H. Dhebar, for the respondents, 651 1957.  February 13.  The Judgment of the Court was delivered by S.   K.  DAS  J.-These  two  petitions  for  the  issue   of appropriate   writs   restraining   the   respondents   from prosecuting  and  trying  the two  petitioners  ’on  certain criminal  charges in circumstances to be  presently  stated,

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raise the same question of law and have been heard together. This judgment will govern them both. Baij Nath Prasad Tripathi, petitioner in Petition No. 115 of 1956,  was  a Sub-inspector of Police in the then  State  of Bhopal.   He  was  prosecuted in the Court  of  Shri  B.  K. Puranik,  Special Judge, Bhopal, and convicted  of  offences under s. 161, Indian Penal Code, and s. 5 of the  Prevention of  Corruption Act, 1947.  He was sentenced to nine  months’ rigorous imprisonment on each count.  He preferred an appeal against  the  conviction  and  sentences  to  the   Judicial Commissioner  of Bhopal.  The Judicial Commissioner held  by his judGment dated March 7, 1956, that no sanction according to law had been given for the prosecution of the -petitioner and the Special JudGe had no jurisdiction to take cognizance of  the  case; the trial was accordingly ab  initio  invalid -and  liable  to be quashed.  He accordingly set  aside  the conviction  and  quashed the entire proceedings  before  the Special Judge.  He then observed: "The parties would thus be relegated  to the position as if no legal  charge-sheet  had been submitted against the appellant." On April 4, 1956, the Chief  Commissioner of Bhopal passed an order under s.  7(2) of the Criminal Law Amendment Act, 1952 (No.  XLVI of  1952) that  the  petitioner  shall be tried by Shri  S.  N.  Shri- vastava,  Special Judge, Bhopal, for certain offences  under the  Prevention of Corruption Act read with S.  161,  Indian Penal Code.  The case of the petitioner is that he cannot be prosecuted  and tried again for the same offences under  the aforesaid order of April 4, 1956. Sudhakar Dube, petitioner in Petition No. 132 of. 1956,  was also a Sub-Inspector of Police in the then State of  Bhopal. He  was also prosecuted in the Court of Shri B. K.  Puranik, Special Judge, Bhopal, on a 84 652 charge of having accepted illegal gratification for- showing official favour to one Panna Lal.  The learned Special Judge by  an order dated January 10, 1956, came to the  conclusion that no legal sanction for the prosecution of the petitioner had  been given by the competent authority and the  sanction given by the Inspector.  General of Police was not valid  in law;  he  therefore held that the whole trial was  null  and void  and  he could not take cognizance of the  offences  in question.   Accordingly  he  quashed  the  proceedings.   On February  7, 1956, the Chief Secretary to the Government  of Bhopal  accorded fresh sanction for the prosecution  of  the petitioner for offences under s. 161, Indian Penal Code, and s.  5 of the Prevention of Corruption Act.   The  petitioner then moved this Court for appropriate writs restraining  the respondents from prosecuting and trying him for the offences stated in the fresh sanction aforesaid. On behalf of both the petitioners the contention is that  by reason of cl. (2) of Art. 20 of the Constitution and s.  403 of  the Code of Criminal Procedure, the  petitioners  cannot now be tried ’for the offences in question.  It is necessary to  read here some of the relevant sections bearing  on  the point  at  issue.  Section 6 of the Criminal  Law  Amendment Act,  1952 (prior to the amendment made in 1955), so far  as is relevant for our purpose, is in these terms : "6.  (1)  The State Government may, by notification  in  the Official  Gazette, appoint as many special Judges as may  be necessary for such area or areas as may be specified in  the notification Co try the following offences, namely:- (a)  an  offence punishable under section 161, section  165, or section 165-A of the Indian Penal Code (Act XLV of 1860), or  sub-section  (2)  of  section 5  of  the  Prevention  of

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Corruption Act, 1947 (II of 1947); (b)  any  conspiracy to commit or any attempt to  commit  or any  abetment  of any of the offences  specified  in  clause (a"’. Sub-section (1) of s. 7 of the same Act lays down: "7.  (1) Notwithstanding anything contained in the  Code  of Criminal Procedure, 1898 (Act V of 1898) or in 655 any  other  law the offences specified in subsection  (I  of section 6 shall be triable by special Judges only". The  same section also states that when trying any  case,  a special Judge may also try any offence other than an offence specified in s. 6 with which the accused may, under the Code of  Criminal Procedure, 1898, be charged at the same  trial. It  is  not  necessary for our purpose  to  read  the  other sections "of the Criminal Law Amendment Act, 1952.  We  then go  to  the Prevention of Corruption Act,  1947,  section  6 whereof  is  relevant for our purpose.  That section  is  in these terms: "  6.  (1)  No Court shall, take cognizance  of  an  offence punishable  under section 16l or section 165 of  the  Indian Penal  Code  or under sub-section (2) of section 5  of  this Act,  alleged  to have been committed by  a  public  servant except  with  the  previous sanction,(a) in the  case  of  a person who is employed in connection with the affairs of the Union  and is not removable from his office save by or  with the  sanction of the Central Government..........  [of  the] Central Government; (b)  in  the case of a person who is employed in  connection with the affairs of [a State] and is not removable from  his office   save  by  or  -with  the  sanction  of  the   State Government................ [of the] State Government; (c)  in  the  case  of any other person,  of  the  authority competent to remove him from his office. (2)  Where  for  any  reason  whatsoever  any  doubt  arises whether the previous sanction as required under  sub-section (1)  should be given by the Central or State  Government  or any  other authority, such sanction shall be given  by  that Government  or authority which would have been competent  to remove, the public servant from his office at the time  when the offence was alleged to have been committed." It is under this section that sanction was necessary for the prosecution  of the petitioners.  Clause (2) of Art.  20  of the Constitution, on which the petitioners rely, states: 654 "No  person  shall be prosecuted and punished for  the  same offence more than once." Section 403 (1) of the Code of Criminal Procedure, on  which learned counsel for the petitioners has placed the  greatest reliance, is in these terms: "  A person who has once been tried by a Court of  competent jurisdiction  for ail offence and convicted or acquitted  of such  offence  shall,  while such  conviction  or  acquittal remains  in force, not be liable to be tried again  for  the same  offence, nor on the same facts for any  other  offence for  which a different charge from the one made against  him might  have  been made under section 236, or  for  which  he might have been convicted under section 237." Now,  it  is  necessary to state that  the  point  taken  by learned  counsel for the petitioners is really concluded  by three decisions-(a) one of the Privy Council,(b)  another of the  Federal Court and (c) the third of this  Court  itself. The Privy Council decision is in Yusofalli Mulla v. The King (1); the Federal Court decision in Basdeo Agarwalla v. King- Emperor  (2)  ;  and the decision of  this  Court  (not  yet

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reported)  was given in Budha Mal v. State of Delhi  (3)  on October 3, 1952.  The Privy Council decision is directly  in point, and it was there held that the whole basis of s.  403 (1) was that the first trial should have been before a Court competent  to  hear and determine the case and to  record  a verdict of conviction or acquittal; if the Court was not  so competent,  as for example where the required  sanction  for the prosecution was not obtained, it was irrelevant that  it was competent to try other cases of the same class or indeed the  case  against  the  particular  accused  in   different circumstances, for example if a sanction had been  obtained. So  is  the  decision  of this  Court  where  the  following observations were made with regard to the point in question: "  Section  403, Criminal Procedure Code, applies  to  cases where  the  acquittal  order has been made  by  a  Court  of competent jurisdiction but it does not bar (1)  A.I.R. 1949 P.C. 264. (2)  [1945] F.C. R. 93. (3)  Criminal  Appeal No. 17 Of 1952 decided on  October  3, 1952. 655 a  retrial of the accused in cases where such an  order  has been  made  by  a court which had no  jurisdiction  to  take cognizance of the case.  It is quite apparent on this record that  in  the absence of a valid sanction the trial  of  the appellant in the first instance was by: a magistrate who had no jurisdiction to try him." After  the pronouncements made in the decisions referred  to above,  it is really unnecessary to embark on a  further  or fuller  discussion  of the point raised,  except  merely  to state that we have heard learned counsel for the petitioners who made a vain attempt with a crusading pertinacity  worthy of  a better cause, to show that the Privy Council  decision was   wrong  and  the  decision  of  this   Court   required reconsideration,  and having heard learned counsel in  full, we  are  of the view that the decisions  referred  to  above state the legal position correctly.  It is clear beyond  any doubt  that  el. (2) of Art. 20 of the Constitution  has  no application  in  these two cases.  The petitioners  are  not being prosecuted and punished for the same offence more than once,,  the earlier proceedings having been held to be  null and  void.   With  regard  to  s.  403,  Code  of   Criminal Procedure,  it is enough to state that the petitioners  were not  tried,-  in  the earlier proceedings,  by  a  Court  of competent  jurisdiction,  nor  is there  any  conviction  or acquittal in force within the meaning of s. 403. (1) of  the Code,  to  stand as a bar against their trial for  the  same offences.   Learned counsel for the petitioners invited  our attention  to ss. 190, 191, 192, 529 and 530 of the Code  of Criminal   Procedure   and   submitted   that   in   certain circumstances   the   Code  drew   a   distinction   between ’jurisdiction’  and I taking cognizance’.  The whole  fabric of  the  argument  of learned counsel was  founded  on  this distinction.   Assuming, however, that in certain cases  one Magistrate  may take cognizance and another  Magistrate  may try an accused person, it is difficult to appreciate how any Court can try the petitioners of these cases in the  absence of a sanction in view of the mandatory provisions of s. 6 of the  Prevention  of Corruption Act, 1947.  If no  Court  can take cognizance of the offences in question without a  legal sanction, it is obvious 666 that  no  Court  can  be said to be  a  Court  of  competent jurisdiction to try those offences and that any trial in the absence  of  such sanction must be null and  void,  and  the

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sections  of  the Code on which learned counsel  1  for  the petitioners  relied have really no. bearing on  the  matter. Section 530 of the Code is really against the contention  of learned  counsel,  for it states, inter alia,  that  if  any Magistrate  not being empowered by law to try all  offender, tries him, then the proceedings shall be void.  Section  529 (e)  is  merely  an  exception  in  the  matter  of   taking cognizance of an offence under s. 190, sub-s. (1), cls.  (a) and  (b);  it  has no bearing in a case  where  sanction  is necessary  and no sanction in accordance with law  has  been obtained. As   part  of  his  arguments,  learned  counsel   for   the petitioners referred to certain observations made by  Braund J.  in  a decision of the Allahabad High  Court,  Basdeo  v. Emperor  (1),  where the learned Judge  drew  a  distinction between   ’taking  cognizance’  and   ’jurisdiction’.    The distinction  was  drawn in a case where  a  Magistrate  duly empowered  to commit cases to the Sessions  Court  committed ail  accused person to the Court of Session in disregard  of the provisions of s. 254 of the Code of Criminal  Procedure, and  the question was whether the irregularity so  committed rendered  the  Sessions Court incompetent to try  the  case. The  facts there were entirely different from the  facts  of the  present cases and there was no occasion  nor  necessity for  considering such mandatory provisions as are  contained in  s.  6 of the Prevention of Corruption Act.   We  do  not think that the observations made in that case can be pressed in service in support of the argument of learned counsel for the petitioners in these cases, treating those  observations as  though they laid down any abstract propositions  of  law not dependent on the context of the facts in connection with which they were made. Out of deference to learned counsel for the petitioners,  we have  indicated  and considered very briefly  the  arguments advanced before us.  As we have said (1)  A.I.R. T045 All. 340. 657 before, - the point is really concluded by decisions of  the highest  tribunal,  decisions which correctly lay  down  the law.   The  result  therefore is that  these  petitions  are devoid of all merit and must be dismissed. Petitions dismissed.